Sila Sila Chacha and 2 Others vs Republic (Criminal Appeal No. 44, 45 & 46 of 2021) [2024] TZCA 1027 (4 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA f CO RAM: MU6ASHA. J.A., KITUSI. J.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 44, 45 & 46 OF 2021 SILA SILA CHACHA...........................................................1 st APPELLANT JOHN MUNIKO MANGO ....... ............................................. 2 nd APPELLANT PETER MUNIKO MANGO ................................................... 3 rd APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Musoma) (Kisanva, J.) dated the 18th day of December, 2020 in Consolidated Criminal Appeal No. 103,104 & 105 of 2020 RULING OF THE COURT 1s t & 4th November, 2024 ISSA, J.A.: In the District Court of Serengeti at Mugumu (the trial court), the appellants, Sila Sila Chacha, John Muniko Mango and Peter Muniko Mango were jointly charged for four counts; first, unlawful entry in the National Park contrary to sections 21(1) (a), (2) and 29(1) of the National Parks Act, Cap.' 282 (the NPA); second, unlawful possession of weapons in the National Park contrary to section 24(l)(b) and (2) of the NPA; third and fourth, unlawful possession of Government Trophy contrary to section 86(1) and (2)(b) of the Wildlife Conservation

Act, Cap. 283 (the WCA) read together with paragraph 14 of the First Schedule and section 57(1) and 60(2) of the Economic and Organised Crime Control Act, Cap. 200 (the EOCCA). After a full trial the appellants were convicted and sentenced to serve 6 months imprisonment for the first count, 1 year imprisonment for the second count, 20 years imprisonment for the third count and 20 years imprisonment for the fourth count. The sentences were ordered to run concurrently. The prosecution case against the appellants was that, on 26th November, 2018 at 10.30 hours at Borogonja area in Serengeti National Park (the park) within Serengeti District in Mara Region, the appellants were found to have entered the park without permission armed with two knives, one machete, one spear, one bow, seven arrows and four animal trapping wires. They were also in possession of two legs of Wildebeest and two hind legs of Zebra valued at TZS. 4,070,000.00. The appellants pleaded not guilty to the charge. The prosecution fielded four witnesses to prove the charge, and after a full trial the appellants were convicted as charged and sentenced as stated earlier. For a reason that will become apparent shortly, we find it unnecessary

to explore the factual settings giving rise to the appellants' conviction and sentence. Aggrieved with that decision, the appellants instituted Criminal Appeals No. 103, 104 and 105 of 2020 at the High Court of Tanzania at Musoma (the first appellate court) which confirmed the findings of the trial court and dismissed the appeal. Still aggrieved, the appellants have instituted the instant appeals. The 1s t appellant filed a memorandum of appeal containing four grounds while the 2n d and 3r d appellants filed a joint memorandum of appeal containing two grounds. We find unnecessary to reproduce the grounds of appeal for the same reason that will be apparent shortly. At the hearing, the appellants were present in person fending for themselves. Upon enquiry, they adopted their grounds of appeal and opted for the respondent Republic to submit first and to rejoin later if a need arise. The respondent Republic, on the other hand, was represented by Ms. Sabina Choghoghwe, learned Senior State Attorney assisted by Ms. Agma Haule and Ms. Beatrice Mgumba, both learned State Attorneys. At the outset, Ms. Haule expressed the respondent's stance to support the appeal on grounds other than those raised by the

appellants. She submitted that the consent and certificate conferring jurisdiction to the trial court were invalid for two reasons. One, the consent was issued under section 26(1) by a Senior State Attorney in charge while this provision was reserved for the Director of Public Prosecution (the DPP). Two, the consent and the certificate did not cite the provisions of law creating the offence in 3r d and 4th counts. The outcome of these anomalies, she argued, make the consent and certificate invalid. Hence, the trial court had no jurisdiction to try the economic offences. She bolstered her argument by citing the Court's decision in Peter Kongori Maliwa and 4 Others v. The Republic, Criminal Appeal No. 253 of 2020 [2023] TZCA 17350 (14th June 2023, TANZLII). With the said submission, Ms. Haule implored the Court to invoke revisional jurisdiction, nullify the proceedings and judgments of the courts below and set aside conviction and sentence. Ms. Haule added that, this Court could order a retrial after nullifying the proceedings of the trial court, but they are not asking the Court to take that path as there are discrepancies in the prosecution case. First, the count of unlawful entry in the park is no longer an offence under the NPA. Second, it was not proved by coordinates of the National Park that the appellants were found in the national park.

Third, the disposal of the trophy requires the appellants to be brought before the magistrate and be heard before the disposal order is issued. In the instant case, the appellants were not accorded the right to be heard before the magistrate as the inventory does not show any comment made by the appellants. She submitted that it is contrary to the guidelines issued by the Court in Buluka Leken Ole Ndidai and Another v. The Republic, Criminal Appeal No. 459 of 2020 [2024] TZCA 116 (21st February 2024, TANZLII). Hence, the inventory was not properly before the trial court. She concluded that, if a retrial is ordered the prosecution will not have sufficient evidence to prove the charge. She prayed for the appellants to be set free. The appellants, in their reply, as the matter involves a point of law they did not have anything of substance to say. They prayed for the Court to set them free. The issues we have to determine are whether the consent and certificate conferring jurisdiction to the trial court were valid and if not what is the remedy. The issue of consent and certificate touched the jurisdiction of the trial court to try economic offences. In the instant case, the appellants were charged with four counts in which the first and second were non

economic while the third and fourth were economic offences. The jurisdiction of the court to try economic offences has been conferred to the Corruption and Economic Crimes Division of the High Court under section 3(3) of the EOCCA, but the same Act under section 12(3) provides that the economic offences can be tried by a subordinate court if the DPP or any State Attorney duly authorised by the DPP directs by certificate under his hand that it should be tried by such subordinate court. In the event that the charge involves both economic and non economic offences section 12(4) of EOCCA provides that the certificate should be issued under this provision. (See - Mhole Saguda Nyamagu v. The Republic, Criminal Appeal No. 338 of 2017 [2019] TZCA 623 (5th April 2019, TANZLII). In the instant case, the certificate was correctly issued under section 12(4) of the EOCCA. The law also states that, for a trial to commence at the respective subordinate court, there must be a consent from the DPP under section 26(1) of the EOCCA or an officer subordinate to the DPP under section 26(2) of the EOCCA. Section 26 provides: ” 26 (1) Subject to the provisions o f this section, no trial in respect o f an economic offence may

be commenced under this Act save with the consent o f the Director o fPublic Prosecutions. (2) The Director o f Public Prosecutions shall establish and maintain a system whereby the process o f seeking and obtaining o f his consent for prosecutions o f which shall require the consent o f the Director o f Public Prosecutions in person and those power o f consenting to the prosecution o f which may be exercised by such officer or officers subordinate to him as he may specify acting in accordance with his general or specific instructions. (3) N/A" The consent in the instant case was issued under section 26(1) of the EOCCA by the Senior State Attorney in-charge instead of the DPP. This was a serious irregularity as the power under section 26(1) can not be delagated. (See- Peter Kongori Maliwa and 4 Others v. The Republic (supra) and Amiri Ally Shaban and Another v. The Republic, Criminal Appeal No. 155B of 2023 [2024] TZCA 35 (14th February 2024, TANZLII). Therefore, the trial was conducted without the requisite jurisdiction as the consent was invalid. Further, the consent and the certificate suffered another anomaly having not cited the provisions of law creating the offence of unlawful

possession of Government Trophy. The legal consequence of such omission is to vitiate the trial proceedings as the trial court acted without jurisdiction to try the economic offence in question. (See - Dilipkumar Maganbai Patel v. The Republic, Criminal Appeal No. 270 of 2019 [2022] TZCA 477 (25th July 2022, TANZLII), Rhobi Marwa Mgare and 2 Others v. The Republic, Criminal Appeal No. 192 of 2005 (unreported) and Chacha Chiwa Marungu v. The Republic, Criminal Appeal No. 364 of 2020 [2023] TZCA 17311 (5th June 2023, TANZLII). We, therefore, agree with Ms. Haule that both the consent of the DPP and the certificate conferring jurisdiction to the trial court were invalid and hence the proceedings are a nullity. Therefore, in terms of section 4(2)(a) of the Appellate Jurisdiction Act, Cap. 141 we nullify the proceedings of the trial court and first appellate court, quash the convictions and set aside the sentences thereof. On the way forward, we also agree with Ms. Haule that re-trial is not an option on the face of existing irregularities. One, unlawful entry in the park is no longer an offence after the amendment in the NPA made by Act No. 11 of 2003. Now, section 21(1) states:

"21 (1) Any person who commits an offence under this Act shall, on conviction, if no other penalty is specified, be liable - (a) in the case o f an individual, to an fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year or to both that fine and imprisonment. (2) Any person who contravenes the provisions o f this section commits an offence against this Act." Therefore, the appellant was charged, tried, convicted, and sentenced for a non-existent offence of unlawful entry in the park. Two, in the second count given the non-existence of offence of unlawful entry in the park, there is nothing on record suggesting that the appellants were found in the park with weapons. According to section 5 of the NPA read together with the First Schedule of the NPA, it was not proved by coordinates that Borogonya where the appellants were alleged to have been arrested was within the Serengeti National Park. Three, in respect of the third and fourth count the record shows that the trophy was destroyed without according the appellant their right to be heard in the disposal process. Hence, the inventory did not follow the guidelines laid down in Bukiha Leken Ole Ndikai case

(supra) and the inventory cannot substantiate the charge in respect of the third and fourth counts. In the circumstances, ordering a re-trial would provide the prosecution a chance to fill in gaps and thus occasioning injustices to the appellants. Thus, we order the immediate release of the appellants from prison custody unless they are otherwise lawfully held. Order accordingly. DATED at MUSOMA this 4th day of November, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL dgment delivered this 4th day of November, 2024 in the £ of the 1st, 2n d and 3r d Appellants in person un-represented and Mr. Michael Kayombo, learned State Attorney for the respondent / Republic, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL